Rajasthan High Court grants parole to convict after his wife expresses desire to have children

The Rajasthan High Court on Tuesday granted a life convict 15 days' parole to conceive a child with his wife, reasoning that denial of the same would adversely affect her rights [Nand Lal v. State]..A Bench of Justices Sandeep Mehta and Farjand Ali said that the spouse of a convict-prisoner could not be deprived of their rights and needs."The wife of the prisoner has been deprived of her right to have progeny whilst she has not committed any offence and is not under any punishment. Thus, denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife.".The order was passed in a plea moved by the prisoner’s wife, who claimed that the conduct of her husband had been exceedingly good, and since she had no issue arising out of their wedlock, she wanted progeny. She prayed for the prisoner to be granted 15 days' emergent parole..The Bench observed that having progeny for preservation of lineage was recognized through religious philosophies, Indian culture and various judicial pronouncements. It was taken note of that conjugal association has an effect of normalising a convict and helps in altering their behaviour.“The purpose of parole is to let the convict to re-enter into the mainstream of the society peacefully after his release.”It was stated that the right of progeny found mention in religious scriptures as well as literature available on various sites. The Court took examples from Hindu philosophy, Judaism, Christianity and Islam..'Womanhood gets magnified on her becoming a mother'.Considering the sociological aspect of having progeny, the Court opined that in cases where the innocent spouse is a woman who desires to become a mother, the State’s responsibility to this end assumes greater importance.“Her womanhood gets magnified on her becoming a mother, her image gets glorified and becomes more respectful in the family as well in the society.”.It was emphasised that a wife should not be made to live in a condition where she has to suffer living without her husband and without children due to no fault of her own.Elaborating on the legal aspect of the case, the Court stressed that Article 21 of the Constitution guaranteed that no person, including prisoners, be deprived of their life and personal liberty except according to procedure established by law..The judgment in Jasvir Singh and Another v. State of Punjab was relied on, where the Punjab & Haryana High Court ruled that the “right to procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution”.Thus, it was concluded that viewed from every angle, the right to have progeny was available to a prisoner, subject to peculiar facts and circumstances of each case..With this reasoning, despite no express provision in the Rajasthan Prisoners Release on Parole Rules for such a case, the Court allowed the petition..The Court ordered the release of the prisoner on emergent parole for a period of fifteen days on furnishing of a personal bond of ₹50,000 along with two surety bonds of ₹25,000 each..Advocate KR Bhat appeared for the petitioner. The State was represented by Additional Advocate General Anil Joshi..A three-judge Bench of the Madras High Court recently held that convicts did not have the fundamental right to conjugal relationship as a matter of course, though such right was available for specific purposes like fertility treatment only. .The Bench had held that denial of conjugal relationship of the convict for a specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution."The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India.".[Read Order]